Commonwealth v. O.C.; March 2014

Commonwealth v. O.C.; March 2014

Outcome: Not Guilty of three counts of Possession of a Firearm (VUFA § 6106, 6108 and 6105) and guilty of two misdemeanors—Resisting Arrest and Possession of 2 packets of cocaine after a jury trial. O.C. was facing a 5-10 year state incarceration sentence if convicted of the firearm offenses. Instead, he received 6-20 months with credit for time served on the two misdemeanors. He had already served more than the minimum 6 months at the time of trial.

Description: The police received a radio call for a “person with a gun” at a specific location on Tioga Street in Philadelphia. Police responded to the scene and saw O.C. sitting in front of the location. He matched the description of the flash information provided over police radio. When police arrived, O.C. stood up, put his arm around a woman and began to walk off. Police ordered O.C. to stop after they noticed a large bulge on his right hip. O.C. ran from police and turned the corner onto Joyce Street.

According to police, a gun fell from O.C.’s waistband directly at the officer’s feet as he ran away. But, rather than secure the firearm, police continued to chase O.C. A scuffle ensued as O.C. tried to avoid apprehension and arrest. The officer received injuries resulting in him being “injured on duty” for three months. Multiple other police cruisers arrived. The arresting officer and his fellow officers searched for the gun that allegedly fell from O.C.’s waistband but could not find it. During the chase and struggle, police allege that a second male, D.W. was screaming at police and inciting a riot causing many in the neighborhood to come out of their houses. D.W. was arrested and ultimately pled guilty to terroristic threats. According to neighbors, D.W. was observed returning to the gun, picking it up and throwing it into an abandoned yard. However, the father of the individuals who observed this would not allow his daughters to cooperate in the investigation for fear of their safety.

Through pre-trial motions in limine, Brian M. Fishman successfully argued that the prosecution could not elicit testimony from the police that O.C. met the flash information in the radio call as that would be inadmissible hearsay. In addition, the court agreed with Mr. Fishman’s pre-trial motion that the prosecution could not admit testimony that the young woman had seen D.W. pick up the gun and discard it. These successful pre-trial motions greatly handicapped the prosecution’s case as it had to rely on the officer’s testimony that he had seen a gun but was unable to produce the firearm to show the jury or explain an alternative reason as to why it was not later recovered.

The officer, realizing he had to somehow explain why he did not take safety into consideration first by stopping to pick up the gun, back tracked on his story that the gun fell at his feet. Instead, at trial, the officer said that he saw a “black object” fall from O.C.’s waistband and he “believed it was a gun”. He also stated that he did not run between the same set of cars as O.C. and therefore the gun did not “drop at his feet” as he had indicated in his initial paperwork. Mr. Fishman exploited these inconsistencies and pointed out that if the officer was sure it was a gun, he would have obviously stopped to retrieve the gun first for safety. The officer did not agree and it just made his story that much more implausible. The jury simply did not believe the officer’s story that it was a gun that fell from O.C.’s waistband.

O.C. was injured during the arrest and had to be taken to the hospital. While there, he had to get undressed and two packets of crack cocaine fell to the floor and were recovered by police in the hospital. Although he had to concede the possession charge, Mr. Fishman used the presence of the cocaine as an explanation for why O.C. ran in the first place as it was the prosecution’s theory that O.C. ran because he was in possession of the firearm. The fact that O.C. had cocaine on him actually served to assist the defense as providing a counter to this prosecution argument.

Using the argument that O.C. ran because he had drugs on him, successfully keeping out the most damning evidence through pre-trial motions and greatly calling into question the officer’s credibility, Mr. Fishman created reasonable doubt as to the firearm charges and O.C. was acquitted of all felonies. Instead, the jury returned guilty verdicts on simple drug possession and resisting arrest, both misdemeanors. O.C. received a short county sentence that he had more than served by the time the matter reached trial.

If you or someone you know has been arrested for gun possession or drug charges, contact Brian M. Fishman of The Fishman Firm, LLC for a free consultation to discuss your case.